Contemporaneous Records: Meaning, Types and What Tribunals Accept

Contemporaneous records are documents made at the time of the events they record, such as site diaries, progress reports, programme updates, correspondence, photographs and labour returns. Tribunals weigh them above later recollection because they were written before anyone knew which facts would be disputed.

Memory gets rebuilt around the dispute. A diary entry written that evening does not. Most project teams still treat record keeping as administration to catch up on later, and thin records sit behind most of the reasons EOT claims get rejected - not because the delay was invented, but because the evidence of it was never created.

What Does 'Contemporaneous Records' Mean?

A contemporaneous record is a document created at, or very close to, the time of the event it describes. Its weight comes from three features:

• Made inside the event window.
• Made by someone with direct knowledge.
• Made for the job rather than for a claim.

A site diary completed that evening qualifies. A narrative assembled six months later from memory does not.

A frequently cited authority is Attorney General for the Falkland Islands v Gordon Forbes Construction, a 2003 case under the 1987 FIDIC Red Book. The judge described contemporary records as original or primary documents, or copies of them, produced or prepared at or about the time giving rise to a claim.

The court also held that witness statements prepared afterwards could not stand in for them. A statement written after the event is recollection. A record made while the work was happening is a contemporary record.

Contemporaneous Records: Meaning in Law

In most forums the question is weight rather than admissibility, and timing drives weight. In England and Wales, the Civil Evidence Act 1995 tells a court weighing hearsay to consider whether a statement was made contemporaneously and whether it was made for a particular purpose. A diary entry written on the day passes both tests; a chronology drafted for the claim fails the second.

The judicial reasoning is now explicit. In Gestmin v Credit Suisse in 2013, Leggatt J explained that memory is fluid and reshaped by litigation itself. His conclusion was that the best approach in a commercial trial is to place little if any reliance on recollections of meetings and conversations, and to base findings on the documentary evidence.

The claimant carries the burden of proof, and UAE evidence law states the same rule: the party making a claim must prove it. A tribunal cannot award what nobody can prove - a claim can be valid and unprovable.

Contemporaneous vs Contemporary Records: Is There a Difference?

In substance, no. FIDIC says contemporary records, English judges and the SCL Protocol usually say contemporaneous, and both mean records made at the time. The confusion comes from everyday English, where contemporary usually means modern.

Under Sub-Clause 20.1 of the 1999 FIDIC Red and Yellow Books, the contractor must keep such contemporary records as may be necessary to substantiate any claim, and the Engineer may monitor and inspect them. The 2017 suite sets a tighter window: Sub-Clause 20.2.3 defines them as records prepared or generated at the same time as, or immediately after, the event or circumstance giving rise to the claim. It adds that the Engineer's monitoring does not mean the records are accepted as accurate or complete.

Under Sub-Clause 20.2.4, the fully detailed claim is due within 84 days after the contractor became aware, or should have become aware, of the event, or within any other period the Engineer agrees. It must include all the contemporary records relied on, and if it lacks a statement of the contractual or legal basis by that deadline, the Notice of Claim lapses. The 28-day notice rule decides whether the claim survives. The records decide whether it can be proved and what it is worth.

The Records That Decide Delay and Disruption Claims

The SCL Delay and Disruption Protocol sorts project records into six categories: programme, progress, resource, costs, correspondence and administration, and contract and tender documents. On a delay or disruption claim, these records do most of the work, and each fails in a predictable way.

Resource records work twice, rebutting any allegation of under-resourcing and proving the prolongation cost of what stood idle. Sub-Clause 8.3 of the 1999 and 2017 Red Books requires a revised programme whenever the current one stops reflecting actual progress, and those revisions feed most delay analysis methods.

Disruption claims lean on records even harder. The Protocol calls the measured mile the most widely accepted way to prove lost productivity, where the necessary records exist. Without labour hours coded to activities, there is no mile to measure.

What Tribunals Accept and What They Reject

The SCL Delay and Disruption Protocol states the standard plainly: records relevant to progress and delay must be generated contemporaneously as the works progress, and not afterwards. It recommends that progress, resource and cost records state facts, not opinions, and be signed where practicable by both the contractor and the contract administrator.

The courts apply the same logic. In Walter Lilly v Mackay [2012] EWHC 1773 (TCC), Akenhead J accepted the contractor's recorded preliminaries costs as sufficiently accurate because they came from a contemporaneously maintained cost system, cross-checked on site. He also noted that without a contemporaneous critical path programme from February 2007, the delay experts could not readily run the monthly time-slice exercise they would probably have used.

A time-slice windows analysis depends on exactly those updates. What gets rejected is instructive too: the judge was wary of giving significant weight to the supposedly contemporaneous views of people who never gave evidence, where nobody could say what analysis lay behind them. A fact recorded at the time is strong. An opinion recorded at the time is only as strong as the person willing to defend it.

Nor did the court demand perfection. The judge accepted that daily, item-by-item allocation of shared site costs across three linked projects would have been artificial. Tribunals want records that are honest, proportionate and consistent - a contradiction inside your own file damages a claim faster than a gap does.

Correspondence as Contemporaneous Evidence

Contemporaneous correspondence is often the strongest evidence a contractor holds, because it shows what each party knew while the issue was live. The Protocol recommends that every communication be uniquely numbered, dated, given a descriptive subject and distributed as agreed, with important oral communications confirmed in writing.

Email is the weak point, because threads fragment and key messages sit in personal inboxes. The Protocol suggests sending material communications as numbered letters or filing key emails centrally. A WhatsApp message sent on the day also counts, provided it is preserved with its date and sender intact.

Correspondence can also create rights. Under Sub-Clause 3.3 of the 1999 Red Book, a contractor can confirm an oral instruction in writing within two working days. Unless the Engineer rejects or replaces it within two working days of that confirmation, it becomes a written instruction. The trap is treating a helpful email as a notice: notices usually need their own form and period, which the notice deadline calculator tracks.

How to Build a Record System on Site

The problem is rarely a lack of documents. It is the absence of a system that makes them findable, consistent and tied to events. The Protocol recommends agreeing at the outset which records are kept, who produces and checks them, how often, in what format and who stores them.

On site, that comes down to five habits:

1. Set a daily diary standard and audit it weekly.
2. Date, locate and caption every photograph.
3. Update the programme monthly with actual progress, so the critical path is recorded before anyone argues about it.
4. Open an event file on the day of awareness and index every new record to it.
5. Reconcile each week's diaries, progress reports and payment applications - the same week told three ways is a gift to the other side.

Keep emails and programmes in native format, and retain everything until the defects period, any dispute and the limitation period have run.

A filing system that cannot produce every record for one event within minutes is a storage system, not an evidence system. We review hundreds of delay and disruption claims across the GCC every year, and the pattern is consistent: the entitlement existed on the day of the event, but the evidence to carry it was never created, and no drafting at submission can manufacture it.

At CALIM, we build a records matrix into every claims engagement, mapping each clause the claim relies on to the records that prove it while events are still live. Our EOT claims consultants start from that file, because a delay analysis is only as reliable as the records behind it.

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